Rape, marriage, and rights

While
the proliferation of domestic violence legislation worldwide is a positive and
much-needed development, the explicit criminalisation of marital rape needs to be
central to these legal reform initiatives - ensuring that women’s rights are
fully protected. Even within
marriage.

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A
marriage contract shouldn’t be a license to rape ones wife, yet in many parts
of the world today it remains effectively that. Recent news reports have
brought attention to legislation passed in Iraq
explicitly legalizing marital rape, and Lebanon
where the recently enacted domestic violence law falls short of criminalizing
marital rape while making reference to a “marital right of intercourse”. Far
from being new, these developments form part of a long history of laws used to
legitimize rape within marriage by exempting husbands from prosecution for
raping their wives.

Historically,
under British common law, husbands were exempted from prosecution for raping
their wives based on the understanding that marriage meant implied consent to
sex. The following 17th century statement of Sir Mathew Hale was
considered authoritative and was subsequently alsoadopted into the common law of many other commonwealth
countries: "The husband cannot be
guilty of a rape committed by himself upon his lawful wife, for by their mutual
matrimonial consent and the contract the wife hath given up herself in this
kind unto her husband, which she cannot retract.”

In
addition to Hale’s rationale that marriage implied perpetual, un-retractable
consent to sex, other
rationales for the common law marital rape exemption were based on notions
that at marriage a woman becomes the property/chattel of her husband, and that
when two people marry, they become one, rendering marital rape impossible
because a husband is incapable of raping himself. Further historic rationales
included the supposed evidentiary difficulties of proving lack of consent in an
ongoing marriage relationship, the alleged propensity of women to lie about
rape, and the argument that marital rape is less serious than rape outside of
marriage.

In Britain, the marital rape
exemption was abolished in the early 90’s following a Law
Commission report strongly condemning the marital rape exemption, and a landmark 1991 House of Lords decision declaring that
husbands’ immunity for rape within marriage no longer formed part of English
common law.

According
to a 2011 UN report, while two thirds of countries in the world
have laws in place against domestic violence, many countries still have not
enacted legislation explicitly criminalizing marital rape. According to the
report, as of April 2011, only 52 countries had amended their legislation to
explicitly make marital rape a criminal offence (including, for example Canada,
Australia, Denmark, Turkey, Brazil, South Africa, and Rwanda); 127 countries
have not yet taken this step.

Photo: carverphotography.comThe
equality
effect, an international non-profit human rights organization, has
conducted extensive
legal research and analyses on the legal treatment of marital rape in
Kenya, Ghana, and Malawi. In Kenya, the Sexual
Offences Act, 2006 includes an explicit marital rape exemption, whereby the
definition of rape is said not to apply in respect of persons who are “lawfully
married” to each other. In Ghana,
until 2007 the Criminal Code, 1960 explicitly exempted husbands
from prosecution for marital rape by providing that married women could not
revoke their consent
to sex, which was implied upon marriage. This spousal exemption was declared
unconstitutional and removed from the Code
during a statute review process in 2007. However, the current wording of
the criminal law still leaves women vulnerable to the presumption that they
have consented to all sex within marriage. This situation places a heavy burden
on women to somehow prove that they revoked this consent prior to the sexual
assault in question. Furthermore, although the Ghanaian Domestic Violence Act, 2007 criminalizes domestic violence, it does
not specifically criminalize marital rape. In Malawi, the Penal
Code is silent on the issue of marital rape, however “unlawful carnal knowledge”
(the term for rape in Malawi’s law) has
been judicially interpreted to mean sex occurring outside of a marital relationship. The equality
effect’s “3 to be
Free” project is working to address the legal impunity for marital rape in
these 3 countries (Kenya, Ghana and Malawi) using 3 strategies: public legal
education, policy reform, and litigation.

Photo: Patrick NjagiThe failure to criminalize
marital rape fosters
a culture of impunity in which violence against women is state endorsed and
socially accepted, and serves to maintain women’s inequality both within
marriage and in the broader society. It means that marriage can provide a de facto license to rape with impunity—
denying women equal protection of the law, and sustaining a culture of impunity
which only serves to make women vulnerable to further violence. The failure to
treat marital rape as a prosecutable offense encourages an archaic
understanding of women as chattels, having no separate legal existence and
rights from their husbands. It suggests that rape by a woman’s husband is less
reprehensible than by someone with whom she has not signed a marriage contract; and is an affront to women’s rights
to freedom from violence, bodily integrity, self-determination, and autonomy.

The
marital rape exemption has historically been based on discriminatory notions
about women’s subordinate role in marriage; and legal impunity for marital rape
both symbolizes and perpetuates these notions. Research highlighted in the
2011-2102 UN report on the “Progress of the
World’s Women” points to a positive correlation between the existence of
domestic violence legislation, and rates of domestic violence, as well as
social attitudes towards the same. This research has found that in countries
where domestic violence laws exist, prevalence of such violence is lower, and
public attitudes towards such violence are generally less favourable. These
findings beg the question of the extent to which failure to criminalize marital
rape may possibly contribute to the prevalence and social acceptance of this
violence.

In
addition to increasing women’s vulnerability to further violence, legal
impunity for marital rape may also have the effect of increasing women’s
vulnerability to the many health risks associated with sexual violence,
including HIV/AIDS, a link that has been recognized
and documented.

Extending
the full protection of rape laws only to women who are raped by someone other
than their husbands denies marital rape victims the full and equal protection
of the law, a fundamental protection guaranteed under international human
rights law. The fact that many states have not explicitly criminalized marital
rape, or worse, have statutory marital rape exemptions, is particularly troubling given that global
statistics reveal that intimate relationships constitute the main site of
women’s experiences of physical and sexual violence. According to a WHO study, 35%
of women worldwide
have experienced either physical and/or sexual violence; and most of
this violence is intimate partner violence. The study found that nearly a third
of all women who have been in a relationship have experienced physical and/or
sexual violence by their intimate partner. Similarly, a 2014
survey on violence against women across the European Union found that most of this violence is carried out by a current or
former partner, with 22% of women in relationships reporting partner abuse.

Failing
to unequivocally criminalize rape within marriage, therefore, amounts to a
failure to address this violence in a context
(i.e. marriage/intimate relationships) which should really be at the
centre of efforts to address violence against women.

While
the proliferation of domestic violence legislation worldwide is certainly a
positive and much-needed development, the explicit criminalization of marital
rape needs to be central to these legal reform initiatives—ensuring that
women’s rights are fully protected. Even
within marriage.

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